Supreme Court refuses Wagga equestrian groups, CSU, rider's bid to include plaintiff's mother in case

The child was four years old when a horse fell and landed on her while she was a spectator at the NSW Country Showjumping championships at Charles Sturt University in November 2017.

Personal injury proceedings were launched against the organisers, Riverina Equestrian Association and Equestrian Australia Ltd, CSU and the rider - who it is alleged did not maintain control of the horse - in the NSW District Court in 2020. The lawsuit was transferred to the Supreme Court in July last year.

The four defendants - all of whom deny they are liable for the plaintiff's injuries, loss and damage - sought leave to launch a cross-claim against the mother of the girl on several grounds, leading with that she was the guardian at all relevant times and had a duty of care to ensure her safety.

Associate Justice Joanne Harrison considered the proposed cross-claim at hearings in February and April before refusing the leave to file on Friday in a decision that was scathing of the defendants' defiance of court orders for the filing of such a claim for nearly two years.

In other news

The proposed cross-claim argued the girl's mother, as a member of the equestrian community who had participated in or attended events and competitions, should have been more aware of the dangers - if proven - posed to her daughter.

"The cross-defendant owed the plaintiff a duty of care given she was in as good as, if not better, position than any of the cross-claimants to know, or ought to know, [of potential risks]," they said.

The cross-claim outlined the mother and the child had passed signage advising of entering a "high-risk area", and engaged in conversation with the horse's rider, who was thrown from the animal when it was spooked. While riderless, the horse collided with the girl.

"The cross claimants say that if the plaintiff sustained injury, loss and damage as alleged (which is not admitted), then such injury, loss and damage was caused or contributed to by the negligence of the cross-defendant," the proposed claim outlined.

It also alleged the girl's mother was negligent in a string of other fashions, including placing her in a position of peril, failing to observe surroundings, by passing the warning sign, and failing to move away from the horse immediately when it was apparently becoming agitated.

In submissions to the proposed cross-claim, counsel for the girl's mother submitted such a claim would almost suggest that a parent is always liable for a third party's actions that would injure their child.

"The fact that the horse riders were not separated from the public is not the mother's responsibility," Justice Harrison said in considering the application.

"The rider lost control of her horse ... it is difficult to envisage how the plaintiff's mother owed a legal duty of care for her daughter in these circumstances."

Justice Harrison criticised the defendants' deliberate delay in filing the cross-claim, branding the explanations provided as "most unsatisfactory".

"I am of the view that the insurer and/or the client ... chose not to give instructions to file it until August 2, 2022 - a delay of nearly two years," she said.

"The insurer and/or the client made an informed and tactical decision not to file the cross-claim in accordance with the directions of both the District and Supreme Courts."

The defendants were refused leave to file and ordered to pay the mother's costs, with Justice Harrison factoring in "the additional emotional effect [it] would have on the plaintiff's mother if she is joined as a cross-defendant" and it was not in the interest in the facilitation of a "just, quick and cheap resolution of the real issues in these proceedings".

"I have also taken into account the number of times that the defendants' solicitor advised ... of the need to file a cross-claim and that claim was ignored," she said.

Our journalists work hard to provide local, up-to-date news to the community. This is how you can continue to access our trusted content: